An open access publication of the American Academy of Arts & Sciences
Fall 2008

Keeping courts impartial amid changing judicial elections

Bert Brandenburg and Roy A. Schotland

Bert Brandenburg is executive director of the Justice at Stake Campaign, a national partnership of fifty organizations working to keep courts fair and impartial. He was director of public affairs and chief spokesperson for the Department of Justice under Attorney General Janet Reno.

Roy A. Schotland is professor of law at Georgetown University Law Center. He serves as a senior adviser to the National Center for State Courts.

That’s obscene for a judicial race. . . . What does it gain people? How can people have faith in the system?

–Justice Lloyd Karmeier, Illinois Supreme Court, Election Night 20041

More than 89 percent of America’s state judges must stand for election to sit on the bench or retain office.2 Judicial contests have traditionally been different from other elections because judges historically haven’t had to raise huge war chests, cater to interest groups, make sound-bite promises, or respond to hardball attacks. Judicial election politics have stayed cooler in part because Americans don’t want courtroom decisions to be influenced by political pressure.

But Justice Karmeier’s race encapsulates a troubling transformation. He issued his warning after winning the most expensive contested judicial election in American history. In a rural district, the two candidates raised more than $9.3 million–more than was raised in eighteen out of thirty-four U.S. Senate races that year. Trial lawyers wrote six-figure checks to the state Democratic Party and teamed up with labor leaders to funnel money into the race through a political action committee. On the other side, the U.S. Chamber of Commerce and the American Tort Reform Association poured in millions more through the state Republicans, the state Chamber, and a friendly political action committee.3 .  .  .


  • 1Ryan Keith, “Republican Lloyd Karmeier Wins Supreme Court Seat,” Associated Press, November 3, 2004.
  • 2The ideas in this essay were first presented at the 2007 conference on The Debate over Judicial Elections and State Court Judicial Selection, convened by the Sandra Day O’Connor Project on the State of the Judiciary at Georgetown University Law Center. A modified version of this essay appears in The Georgetown Journal of Legal Ethics 21 (4) (Fall 2008).
  • 3See Jesse Rutledge, Deborah Goldberg, Sarah Samis, Edwin Bender, and Rachel Weiss, The New Politics of Judicial Elections 2004 (Washington, D.C.: Justice at Stake, 2005), 18, 26–27.
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